Same-sex/gay marriage in Bermuda

2017-JUL until now.

Part 2

The government attempts to turn back the clock on gay marriages:

2017-JUL-18: Following the elections for the House of Assembly, the One Bermuda Alliance party (OBA) lost their majority. The voter turnout was 74%. The Progressive Labour Party (PLP) won 24 of the available 36 seats and now form the government. 1

2017-NOV-02: Walton Brown (PLP), the new Minister of Home Affairs, tabled the Domestic Partnership Act. It would replace same-sex marriages with domestic partnerships for same-sex couples. It would give same-sex couples the same rights as opposite-sex married couples except the one factor that is perhaps the most important: being able to call their relationship a marriage.

During public consultation, which was limited to two weeks, the bill was widely criticized:

The Human Rights Commission (HRC) The latter called it: "... a de facto removal of rights from same-sex couples." They also noted that the Act might cause Bermudian domestic partnerships to not to have their relationship recognized outside the country.

The Rainbow Alliance of Bermuda also attacked the bill, saying that: "Ultimately, no separate but equal measure allows for equality or justice." They were: "disappointed ... [that the Government had] taken the approach to remove marriage equality from the law."

They fet that the LGBTQ+ community deserved "...
having their loving, committed relationships recognized both locally and internationally. ... It is unfortunate the Government sees fit for Bermuda to become the first jurisdiction globally to have marriage equality rescinded. This is not the international reputation that our country should strive for. ... Proposing legislation that allows for further division between the LGBTQ+ community and the Bermuda community at large does nothing to help move Bermuda forward to become a more just and equal society."

The anti-equality group "Preserve Marriage" did not comment. 2

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2017-DEC:

The bill was passed by the House of Assembly on DEC-08 with a 24 to 10 vote.

The Bermuda Tourism Authority commented:

"Since last Friday’s vote, we have seen ample evidence of negative international headlines and growing social-media hostility towards Bermuda that we feel compelled to express our concern about what the negative consequences could be for tourism if the Domestic Partnership Bill passes the Senate this week. We believe the Bill poses an unnecessary threat to the success of our tourism industry.

We urge you to vote no and appreciate the opportunity to lay out the reasons why. Importantly, we do not view domestic partnerships as a negative in isolation. In fact many jurisdictions permit domestic partnerships without adverse impacts on their economies.

The circumstance in Bermuda is different — and troubling — in one important way: same-sex marriage is already the law of our island and to roll that back for what will be seen as a less equal union will cause us serious reputational damage. We are convinced it will result in lost tourism business for Bermuda." 11

The Senate passed the bill on DEC-13 by an 8-3 vote. It was sent to the Governor for signing or vetoing. 3

Rod Attride-Stirling, a lawyer who has been involved in the drive for marriage equality commented:

"There is lawful same-sex marriage in Bermuda and there have been several marriages now, so the Government is taking away a right that exists. If the Supreme Court had not already ruled on this, then the position would be very different. ...The fact that no country in the world has ever done this should give us pause. We will look foolish and oppressive, at a time when we can ill-afford this, in the light of everything going on and the spotlight shining on us for other reasons." 4

Jordan Sousa of the island's Gay Straight Alliance said: "This is a national embarrassment, turning Bermuda -- who bills itself as a 21st century place to do business -- into a theocracy." 5

Jeffrey Baron, shadow Minister for National Security, said that if the bill becomes law, it would cast a stain on Bermuda and its legislature as the first country "ever to re-ban same-sex marriages." 5

Governor John Rankin did not sign the bill into law on behalf of the Queen. It may have to be sent to the Queen for her signature. 6

John Rankin, the Governor of Bermuda, is taking legal advice on giving assent to a controversial Bill designed to replace same-sex marriage with "watered-down” domestic partnerships. Government House confirmed the Governor had asked for legal opinions on the Domestic Partnership Bill in line with provisions in the island’s Constitution. A spokesman said:

"The Governor is continuing to consider the Bill in accordance with Section 35(2) of the Constitution. In considering the Bill, he is taking legal advice as appropriate. ..."

The Constitution does not stipulate a time frame for assenting to Bills. It is understood that legal arguments over whether the Bill is in line with the Constitution, and international obligations, have to be considered. The [UK] Foreign Office said this month:

"While the UK Government is disappointed with the implications of this Bill, this is a matter for the Bermuda Government acting within the terms of the Bermuda Constitution and in accordance with international law."

Section 35 (2) of the Constitution outlines procedures for the Governor to sign a Bill. The Governor is required to signify that he assents or that he withholds assent or that he:

"reserves the Bill for the signification of Her Majesty’s pleasure."

The Governor has to:

"reserve for the signification of Her Majesty’s pleasure any Bill which appears to him, acting in his discretion ... to be inconsistent with any obligation of Her Majesty or of Her Majesty’s Government in the United Kingdom towards any other state or power or any international organization.'

The section also allows the Governor to refuse to sign a Bill that is considered to be:

"in any way repugnant to or inconsistent with the provisions of the Constitution."

By the end of the year, same-sex couples visiting Bermuda who wanted to become married on their vacation were in a state of limbo. Cruise ships had been planning to accommodate such couples during cruises. Alternately, such couples could be married in a Registrar's Office or elsewhere on the island. Many couples took advantage of this option. More than 60 percent of all notices of marriage in Bermuda show couples living together in North America or Europe ... before the ceremony." 7

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2018-JAN: There are indications that groups working to attain Bermuda's independence from Britain will pounce on the same-sex marriage issue if the Governor vetoes the bill.

When asked by Bernews whether they believe that Governor will sign the domestic partnership bill into law or veto it:

A spokesperson for the Bermuda Government House said: "The Governor is continuing to consider the Domestic Partnership Bill in accordance with section 35 [2] of the Constitution. In considering the Bill he is taking legal advice as appropriate."

Michael Fahy, the former Minister of Home Affairs said: "The Governor will ultimately take direction from the Foreign Office in respect of what to do. Whilst the bill is certainly morally bankrupt and reprehensible I do not think it is unconstitutional and I suspect, unfortunately, that it will be signed. I believe this Bill was in fact brought to force a constitutional crisis and give a reason for the Minister of Home Affairs to restart his long standing campaign for Independence. I have no doubt this is also weighing on the collective minds in the Foreign Office. Nevertheless I do hope that the bill is rejected by the Governor."

Former Premier Michael Dunkley said: "It is disappointing to say the least that the PLP Government has seen fit to pass this Bill. As we have witnessed since the House and Senate debate and approval, media throughout the world have focused on this regressive step. It has not cast Bermuda in a good light as a jurisdiction taking rights away from people. The election is over and there is no need for the PLP to make decisions for votes. Now is the time for the PLP Government to govern for all people."

Webmaster's comment: [Bias alert]

The reference that the Government should govern for "all people" will probably be interpreted by most to mean that the bill should have been defeated, and that both same-sex and opposite-sex couples should be able to continue to marry. On the other hand, it could be interpreted as implying that since a strong majority of citizens expressed in a referendum their opposition to marriage equality, that marriage should be limited to opposite-sex couples.

A spokesperson for the LGBT awareness group OUTBermuda said: "... the Act was passed by a democratically elected House of Assembly, and a Senate appointed in accordance with the Constitution. If the Act does not otherwise offend the Constitution we see no reason why the Governor would not assent to it. We recognize that in a democracy there will be times that we do not get the policies or legislation we would like. But living in a democracy also affords us the ability to influence both the Government and public to change that. OUTBermuda supports marriage equality, and will continue working towards advancing the rights of all LGBTQ people in Bermuda."

Pastor Sylvia Hayward-Harris' son attempted unsuccessfully to marry his same-sex partner in Bermuda during 2015. She said:

"This is a conflictual issue for me. I totally disagree with any carve-outs from the Human Rights Act, as I think that sets a very dangerous precedent and places all of us at potential risk. I am also very aware that this DPA is a stop-gap measure to placate a supposedly majority PLP base while leaving a minority population stuck in separate and unequal status, a status that will hold no weight elsewhere in the world, except for a very small group of locations. It also leaves ... [same-sex] couples married elsewhere prior to the Court ruling in a state of unacceptable limbo with their marriages considered void and invalid on island. On the other hand, since I am convinced that the ‘Independence crew’ are on the look-out for any way to further their cause, this issue could be tailor-made for them if the Governor does decide not to sign. I think independence would be an extremely grave error for Bermuda at this crucial time, so there is a part of me that hopes he won’t step out of the usual ‘rubber stamp’ mold that Governors have adhered to for the longest while. It’s a rock and a hard place situation."

Former Cabinet Minister Renee Webb said,

"I am on record as supporting both Domestic Partnerships and Same Sex Marriage. Consenting adults should have the right to chose who they want for their partner in marriage or otherwise. Equality must prevail in a democracy like Bermuda. No group should be left behind based on the choice of any majority. With respect to the Governor, he must follow his conscience. Both the Bermuda Constitution, and the British law on Same Sex Marriage are in his favor in that they give him a choice that only he can make. Hopefully, his conscience will dictate his choice."

"Cow Polly," a reader of the article on Bernews posted a comment saying:

"Dear Governor, since the change in law allowing SSM, I have not read of any incidents of any heterosexual marriages being negatively impacted, or children being abused, or schools changing their curriculum. All [of these were] hysterical claims made by the opposers of SSM. Given that none of this has come to fruition and six SS marriages have taken place and Bermuda has not burst into flames, why should you repeal the law? As with selling liquor on Sundays and allowing Twizzys on the road, all this will die down once it is out of the spotlight. Please don’t be swayed by a majority who ought to know better given their own history.
Let’s start 2018 with some compassion for all people regardless of what they stand for. Isn’t that what a mature society does?
" 8

The UK Foreign and Commonwealth Office [FCO] said: "The UK Government is a proud supporter of LGBT rights and continues to support same sex marriage. ... While the UK Government is disappointed with the implications of this Bill, this is a matter for the Bermuda Government acting within the terms of the Bermuda Constitution and in accordance with international law." 9

Status of same-sex marriage within the United Kingdom, British Overseas Territories and Crown Dependencies:

Areas that allow same sex marriage include: England, Wales, Scotland, Akrotiri & Dhekelia, British Indian Ocean Territory, Pitcairn Islands, Ascension Island, Isle of Man, British Antarctic Territory, Gibraltar, Guernsey, Falklands, Tristan da Cunha and Alderney. It is also legal in Canada and the U.S. which, centuries ago, were colonies of the UK.

Areas that do not allow such marriages include: Anguilla, British Virgin Islands, Cayman Islands, Jersey, Montserrat, Northern Ireland, Saint Helena, South Georgia & South Sandwich Islands, Turks & Caicos Islands, and Sark, which is part of the Bailiwick of Guernsey. 9

2018-JAN-26: Update on the bill to restrict marriage to one woman and one man:

More than 40 days has passed since the Bermuda House and Senate passed the bill, that would replace marriages for same-sex couples with domestic partnerships. The Governor has neither signed it into law nor vetoed it.

During the week of JAN-14, Lord Ahmad -- the UK’s overseas territories minister -- told the UK Foreign Affairs Select Committee that the situation was of "... deep concern to us,"

He said Britain was:

"... clear where we stand on the issue of same-sex marriage, it is the human right of any individual to have that right. That point has been made in no uncertain terms to the premier and he is aware of the British government’s position on that." 10

The matter is scheduled to be debated in the UK House of Commons during JAN-29.

In the meantime, gay marriages are continuing to be solemnized in Bermuda and on Bermuda-registered cruise ships. It will take more time to determine whether Bermuda makes history by becoming the first country in the world to legalize same-sex marriage, and then reverse that decision. (California is a state, not a country, but its Supreme Court legalized same-sex marriage during 2008, only to have it reversed later that year by a public referendum.) In all of the other countries where marriage equality was attained, support for such marriages has gradually increased over time.

References used:

The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.